Citation Nr: 0719776
Decision Date: 06/29/07 Archive Date: 07/05/07
DOCKET NO. 95-02 706A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to a total disability rating for compensation
based upon individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Nancy L. Foti, Attorney at Law
WITNESS AT HEARINGS ON APPEAL
J.A.J., M.D.
ATTORNEY FOR THE BOARD
C. Lawson, Counsel
INTRODUCTION
The veteran had verified active service from February 1975 to
October 1978.
In August 1994, the RO denied the veteran's claim for a
rating in excess of 70 percent for undifferentiated
schizophrenia, and for TDIU. The veteran appealed to the
Board of Veterans' Appeals (Board). The Board denied his
appeal in November 2001.
After an appeal of the Board's decision to the United States
Court of Appeals for Veterans Claims (Court), the Board
granted a 100 percent schedular rating for schizophrenia in a
February 2005 Board decision and in that same decision, the
Board dismissed the claim for TDIU. The Board's decision
dismissing the TDIU claim was vacated by the Court in
November 2005. The Court remanded the matter to the Board
and ordered the Board to comply with the instructions in a
November 2005 joint motion. Compliance with that joint
motion is being accomplished in this decision.
FINDINGS OF FACT
1. On August 2, 1994, the veteran filed a claim for an
increased rating for his service-connected schizophrenia; he
also filed a claim for TDIU on the same date.
2. As a consequence of rating decisions which have occurred
since the claims were filed, the veteran has been awarded a
schedular 100 percent rating for his service-connected
undifferentiated schizophrenia disability effective from
August 2, 1994.
CONCLUSION OF LAW
The veteran's claim for TDIU filed on August 2, 1994 is moot.
38 U.S.C.A. §§ 5110 (West 2002); 38 C.F.R. §§ 3.400, 4.16
(2006); 38 C.F.R. § 4.16 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Under the law, TDIU cannot be awarded to a veteran who is
already in receipt of a 100 percent schedular rating. See 38
C.F.R. § 4.16(a) (2006) (TDIU may be awarded "where the
schedular rating is less than total . . .."); 38 C.F.R. §
4.16(a), (c) (1996) (to the same effect). Nevertheless, an
award of a 100 percent schedular rating does not necessarily
moot a simultaneously pending claim for TDIU. If, for
example, a veteran files a claim for TDIU, and then later
files a claim for an increased (total) schedular rating, and
a total schedular rating is granted, a question may still
remain as to whether he is entitled to TDIU for any period
prior to the date that the 100 percent schedular rating is
effective.
Under the particular facts presented here, the Board finds
that the veteran's claim for TDIU is indeed moot. As noted
above, a 100 percent rating under the schedule has been
assigned for schizophrenia from the date the TDIU claim
appealed was filed. The record shows that the veteran filed
the appealed increased rating and TDIU claims on the same
date in August 1994. Both types of awards are governed by
the same effective date rules. See 38 U.S.C.A. § 5110(b)(2)
and 38 C.F.R. § 3.400(o)(2). Further, the "old" criteria in
effect prior to November 7, 1996 did not permit an award of
TDIU under circumstances where the only compensable
service-connected disability was a mental disorder assigned a
70 percent evaluation, and such mental disorder precluded the
claimant from securing or following a substantially gainful
occupation. Rather, in that situation, the law directed that
a 100 percent evaluation be assigned under the schedule. 38
C.F.R. § 4.16(c) (1996). For all of these reasons, it is the
Board's conclusion that further consideration of the TDIU
claim at issue could not possibly result in any additional
monetary benefit to the veteran. The matter is therefore
moot, and will once again be dismissed.
The joint motion which was filed by the parties to the Court
in November 2005 notes that there are 1982 VA treatment
records stating that the veteran was completely unable to
work and that his ability to handle funds was impaired, etc.,
and that there was a February 1983 VA hospital summary
showing a diagnosis of schizophrenia and disclosing that at
the time of leaving the hospital in June 1983, the veteran
was considered unable to engage in any meaningful type of
gainful employment. The joint motion also indicates that the
Board failed to address whether such records constituted
informal claims. Similarly, the argument filed with the
Board in May 2006 is that the February 4, 1982 VA hospital
summary, as well as other VA medical records dated from 1982
through 1986, should be considered informal claims for TDIU.
These might be good points to argue in another context, but
they have no impetus in the context of an appeal of a denial
of a claim which was filed in August 1994 after there had
been a prior final denial of a TDIU in May 1988; and the only
service-connected disability at the time was schizophrenia,
and 38 C.F.R. § 4.16(c) existed as it did at the time. In
Deshotel v. Nicholson, 457 F. 3d 1258 (Fed. Cir. 2006), the
Court indicated that the proper course to take would have
been, at the time of a prior rating decision which the
veteran did not think was right, to timely appeal the denial
of a TDIU; alternatively, the other thing to do would be to
file a current claim alleging that there was clear and
unmistakable error in a prior rating decision for failure to
grant a TDIU. This has not been done. Under Deshotel, the
current TDIU claim is moot because there was a prior final
denial of a TDIU in May 1988 and the current TDIU claim was
filed at the same time as the current claim for an increased
rating for schizophrenia. There were no claims for TDIU -
formal or informal - filed between the denial of TDIU in 1988
and the claim for increase in August 1994.
The joint motion cites LaLonde v. West, 12 Vet. App. 377, 380
(1999), for the proposition that failure to consider evidence
which may be construed as an earlier application or claim
that would have entitled a claimant to an earlier effective
date is remandable error. However, the situation here is
that a TDIU has not been granted so the effective date of a
granted TDIU is not at issue and LaLonde is inapposite.
Moreover, there were no applications between the May 1988
denial and August 1994. The joint motion also indicates that
38 C.F.R. § 4.16(c) should be adequately considered and
discussed. It can not have any favorable bearing on the
matter before the Board. The only service-connected
disability the veteran has ever had is schizophrenia and old
38 C.F.R. § 4.16(c) indicated to assign a 100 percent
schedular rating for schizophrenia if impairment from it was
total, rather than assign a TDIU. It was in effect in 1994.
38 C.F.R. § 4.16(c) can not possibly save the current TDIU
claim from being moot because it was filed at the same time
as the claim for an increased rating for schizophrenia which
was the only service-connected disability.
Because as a matter of law it is not possible to grant the
TDIU appeal, any 38 U.S.C.A. Chapter 51 notice or assistance
violation is harmless. Mason v. Principi, 16 Vet. App. 129
(2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429- 30
(1994). Appellate review of the August 1994 TDIU claim is
permitted at this point, without further action.
ORDER
The appeal of the August 1994 claim for TDIU is dismissed.
____________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs